Benitez v. Salotti

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

HENRY BENITEZ,

Plaintiff,

DECISION AND ORDER

v.

6:16-CV-06219 EAW

K. SALOTTI, Nurse, et al.,

Defendants.

___________________________________

INTRODUCTION

Plaintiff Henry Benitez (“Plaintiff”), proceeding pro se, is an inmate currently

housed at the Great Meadow Correctional Facility. Plaintiff brings the instant action

pursuant to 42 U.S.C. § 1983, alleging that defendants (“Defendants”) committed various

violations of Plaintiff’s constitutional rights while he was housed at the Five Points

Correctional Facility (“Five Points”) between 2014 and 2016. Presently before the Court

is Defendants’ motion for partial summary judgment pursuant to Federal Rule of Civil

Procedure 56. (Dkt. 87). For the following reasons, Defendants’ motion is granted in part

and denied in part.

BACKGROUND

I. Factual Background

The following facts are taken from Defendants’ Local Rule 56 Statement of

Undisputed Facts (Dkt. 87-2),1 Plaintiff’s Statement of Facts (Dkt. 98), and their supporting

documents. Where the parties specifically controvert particular facts, the Court has noted

the disagreement.

A. October 16, 2014 Hospital Claim

On October 16, 2014, Plaintiff, who was housed at Five Points, was taken for

treatment to Strong Memorial Hospital (“Strong”) by Corrections Officers Jenkins,

Schmidt, and Reynolds. (Dkt. 87-2 at ¶¶ 1, 12, 14; Dkt. 98 at ¶¶ 1, 12, 14). Plaintiff

underwent a liver biopsy to determine if he had cancer. (Dkt. 87-2 at ¶ 15; Dkt. 98 at ¶ 15).

During the biopsy, Plaintiff was in handcuffs and turned on his side until the biopsy was

completed. (Dkt. 87-2 at ¶ 16; Dkt. 98 at ¶ 16). The medical records from Strong state

that the biopsy was “[s]uccessful,” but “[i]nconclusive for identifying tumor thrombus vs.

[hepatocellular carcinoma] within liver parenchyma.” (Dkt. 87-2 at ¶ 19; Dkt. 98 at ¶ 19).

It was recommended that Plaintiff have a repeat biopsy “for definitive identification.”

(Dkt. 87-2 at ¶ 19; Dkt. 98 at ¶ 19).

While the evidence of record shows that Plaintiff did file an initial grievance about

the incident with the Inmate Grievance Resolution Committee (“IGRC”) (Dkt. 99 at 18

1 Although Defendants do not make this clear, it appears they only concede certain

facts as set forth herein for purposes of this motion. (See, e.g., Dkt. 87-11 at 18 (“Plaintiff

claims that after the biopsy at Strong Memorial Hospital he was driven back to Five Points

where he was beaten by CO Jenkins[.]” (emphasis added))).

(Grievance FPT-29548-14)), there is no record of the IGRC’s decision being appealed to

the Five Points superintendent or to the Central Office Review Committee (“CORC”),

which is the body that renders the final administrative decisions under the DOCCS Inmate

Grievance Program (“IGP”) (Dkt. 87-9 at 32). Plaintiff contends that he submitted a letter

of appeal to the IGRC asking for his appeal to be sent to the superintendent, and when he

received no response, that he submitted a letter of appeal to the IGP clerk, but never

received a response from CORC. (Dkt. 99 at ¶¶ 7-8).

B. October 16, 17, and 18, 2014 Claims

After the biopsy, Plaintiff was transported back to Five Points. (Dkt. 87-2 at ¶ 20;

Dkt. 98 at ¶ 20). Jenkins drove, with Reynolds in the front passenger seat and Schmidt

behind Plaintiff in the van. (Dkt. 87-2 at ¶ 21; Dkt. 98 at ¶ 21). During the ride, Plaintiff

was upset that his handcuffs were not removed at Strong for the procedure, and Plaintiff

told Jenkins he would sue him. (Dkt. 87-2 at ¶ 22; Dkt. 98 at ¶ 22). Jenkins drove the van

to a barn outside the Five Points perimeter, exited the van, opened the van door, and

repeatedly punched Plaintiff over a two-minute period. (Dkt. 87-2 at ¶¶ 23-24; Dkt. 98 at

¶¶ 23-24). Defendants contend that the blows to Plaintiff’s arms and chest did not hurt but

left red marks and that the only pain Plaintiff recalls from the injury was the pain from the

biopsy incision site (Dkt. 87-2 at ¶¶ 25, 27), and Plaintiff does not remember if the blows

to his head caused him pain or left marks (Dkt. 87-2 at ¶ 26; Dkt. 98 at ¶ 26). Schmidt and

Reynolds did not strike Plaintiff, but also did not say or do anything. (Dkt. 87-2 at ¶ 28;

Dkt. 98 at ¶ 28).

Jenkins drove the van into the Five Points truck trap before escorting Plaintiff back

to the infirmary with an unnamed corrections officer. (Dkt. 87-2 at ¶¶ 30-32; Dkt. 98 at

¶¶ 30-32). Once they arrived in an infirmary room, Plaintiff was pushed against a wall,

and Jenkins punched Plaintiff all over and removed the Band-Aid on Plaintiff’s biopsy

incision. (Dkt. 87-2 at ¶ 33; Dkt. 98 at ¶ 33). The unnamed officer punched Plaintiff in

his testicles and legs. (Dkt. 87-2 at ¶ 34; Dkt. 98 at ¶ 34). The beating lasted two minutes

and ended when Plaintiff’s restraints were removed and Plaintiff passed out. (Dkt. 87-2 at

¶ 35; Dkt. 98 at ¶ 35). As a result of the beating by Jenkins, Plaintiff suffered from redness

and bruising that quickly healed (Dkt. 87-2 at ¶ 36; Dkt. 98 at ¶ 36), and Plaintiff claims

the attack by the unnamed officer left a lump on his testicle and caused him to urinate blood

for three weeks (Dkt. 87-2 at ¶ 37; Dkt. 98 at ¶ 37). Plaintiff remained in the infirmary

room and saw three unnamed nurses who did not offer to treat Plaintiff for his alleged

injuries. (Dkt. 87-2 at ¶ 38; Dkt. 98 at ¶ 38).

On October 17, 2014, Plaintiff was still in the infirmary. (Dkt. 87-2 at ¶ 39; Dkt.

98 at ¶ 39). Sergeant Williams (“Williams”) was going into a room across the hall from

Plaintiff’s room, and Plaintiff called out to him. (Dkt. 87-2 at ¶¶ 40-41; Dkt. 98 at

¶¶ 40-41). They had a conversation about how Plaintiff was beaten and wanted to see a

nurse, but Williams stated he did not care and walked off. (Dkt. 87-2 at ¶¶ 41-42; Dkt. 98

at ¶¶ 41-42). Plaintiff wanted the nurses to examine his testicles, paperwork recording his

injuries so he could use the records for a lawsuit, and a provide new Band-Aid for the

incision site. (Dkt. 87-2 at ¶¶ 43-44; Dkt. 98 at ¶¶ 43-44). Later, Plaintiff stopped Captain

Norris (“Norris”) during his rounds (Dkt. 87-2 at ¶ 45; Dkt. 98 at ¶ 45), and Defendants

contend that Plaintiff complained to Norris who said he would investigate the complaint

(Dkt. 87-2 at ¶ 46). Plaintiff dropped his pants and showed Norris his testicles as well as

the incision site. (Id. at ¶ 47; Dkt. 98 at ¶ 47). Norris gave instructions to Williams, and

while Plaintiff did not hear the instructions, he believes Norris directed Williams to

investigate the situation but not to photograph Plaintiff’s testicles. (Dkt. 87-2 at ¶ 48; Dkt.

98 at ¶ 48).

Williams and Corrections Officer Pierce (“Pierce”) escorted Plaintiff to the

examination room. (Dkt. 87-2 at ¶ 49; Dkt. 98 at ¶ 49). Pierce photographed Plaintiff, but

when Plaintiff asked Williams to photograph his testicles, Williams said no. (Dkt. 87-2 at

¶¶ 50-51; Dkt. 98 at ¶¶ 50-51). The photographs of Plaintiff reveal a red mark on Plaintiff’s

abdomen from the biopsy incision site. (Dkt. 87-2 at ¶ 52; Dkt. 98 at ¶ 52). After the

photos were taken, Nurse B. Jones approached Plaintiff and questioned him about the

alleged assaults. (Dkt. 99 at 29). Plaintiff told her that he had been beaten and that his

testes hurt, and that he was “suing sweetheart.” (Id.). Nurse B. Jones stated that she ended

the encounter because Plaintiff was being uncooperative. (Id.). Nurse B. Jones has not

been served with the Complaint, and is not presently before the Court. (Dkt. 87-2 at 14

n.2).

Later on that day, Dr. Trabout came into the infirmary room, and Plaintiff told him

about the alleged beating. (Id. at ¶¶ 53-54; Dkt. 98 at ¶¶ 53-54). Defendants contend that

Dr. Trabout visually examined Plaintiff’s testicles but did not touch them, and said he did

not see anything wrong. (Dkt. 87-2 at ¶ 55). Dr. Trabout inspected the biopsy incision site

and said it looked fine, and Plaintiff did not complain to the doctor about his head, chest,

or arms. (Id. at ¶¶ 56-57; Dkt. 98 at ¶¶ 56-57). The ambulatory health record (“AHR”)

from Dr. Trabout’s medical exam notes that Plaintiff suffered from “[n]o evident injury,”

and that Plaintiff “was/is being treated from a scrotal infection,” but that there was “no

evidence of any acute trauma in [Plaintiff]’s groin.” (Dkt. 87-2 at ¶ 58; Dkt. 89 at 28).

Defendants contend that Nurse Salotti was not in the room with Dr. Trabout to hear the

conversation. (Dkt. 87-2 at ¶ 60).

At 8:30 p.m. that night, Plaintiff was transferred back to the special housing unit

(“SHU”), and Nurse Salotti told Plaintiff that a nurse at the SHU would examine him. (Id.

at ¶¶ 61-62; Dkt. 98 at ¶¶ 61-62). Nurse Cheasman made medication rounds in the SHU,

and Plaintiff called out to her and told her he was in pain and had a lump on his testicles,

but she did not stop and talk to him. (Dkt. 87-2 at ¶¶ 63-64; Dkt. 98 at ¶¶ 63-64). The

morning of October 18, 2014, Defendants contend Nurse Tracey Jones (“Nurse T. Jones”)

came to see Plaintiff due to a sick call slip he submitted stating he had blood in his urine,

but Plaintiff declined to provide a urine sample. (Dkt. 87-2 at ¶ 66; Dkt. 98 at ¶ 66). A

medical record from November 13, 2014, states that Plaintiff’s mental health unit counselor

informed Nurse T. Jones that there was “a noted ‘lump’” in Plaintiff’s groin area, that

Plaintiff’s medical provider was made aware, and that Plaintiff’s appointment date was

moved up. (Dkt. 99 at 35).

On November 2, 2014, Plaintiff submitted a grievance regarding the events on

October 16 and 17 to the IGRC (Dkt. 87-2 at ¶ 9; Dkt. 99 at 26 (Grievance FPT-29575-

14)), and appealed the unfavorable decision to the superintendent (Dkt 87-9 at 32).

However, CORC has no record of a grievance appeal for this grievance. (Dkt. 87-6 at ¶ 11;

Dkt. 87-9 at 32). Plaintiff contends he filed a timely letter of appeal of the superintendent’s

decision to the IGP clerk, but received no response from CORC. (Dkt. 99 at ¶ 10).

Additionally, Plaintiff claims he submitted a grievance about the events on October 18,

2014 (Dkt. 99 at ¶¶ 11-13), but there is no record of this grievance.

C. November 2014 Claims

On November 5, 2014, Plaintiff underwent another liver biopsy, which revealed the

presence of liver tumor cells. (Dkt. 87-2 at ¶ 68; Dkt. 98 at ¶ 68). Plaintiff subsequently

began treatment for the cancer. (Dkt. 87-2 at ¶ 69; Dkt. 98 at ¶ 69). On November 6, 2014,

Jenkins and Schmidt came to the infirmary to take Plaintiff on a medical trip, but the

medical trip was terminated after an argument. (Dkt. 87-2 at ¶ 70; Dkt. 98 at ¶ 70).

Plaintiff alleges that Jenkins told him that he would transport Plaintiff to Strong in the

future and “fuck you up,” and that Jenkins and Schmidt told him: “we’re both going to fuck

you up next time.” (Dkt. 98 at 22; Dkt. 1 at ¶ 78). Defendants contend that Plaintiff does

not know why the trip was canceled and does not recall if Plaintiff told Jenkins and Schmidt

that he was not going to go. (Dkt. 87-2 at ¶ 71). Plaintiff was escorted back to the SHU

and claims he had liver pain as a result of the missed medical appointment. (Dkt. 87-2 at

¶¶ 72-73; Dkt. 98 at ¶¶ 72-72).

Plaintiff filed a grievance regarding this incident and appealed the IGRC’s decision

to the Five Points superintendent, but there is no record of the grievance being appealed to

CORC. (Dkt. 87-9 at 32 (Grievance FPT-29636-14)). Plaintiff contends that he did not

receive a timely response to his appeal of the IGRC’s decision from the superintendent,

and that he filed a letter of appeal with the IGP clerk but never received a response from

CORC. (Dkt. 99 at ¶ 14).

D. December 1, 2014 Claims

On December 1, 2014, Plaintiff was in his SHU cell standing by his door while

Superintendent Sheahan (“Sheahan”), Deputy Superintendent Thoms (“Thoms”), and

Deputy Superintendent Coveny (“Coveny”) were conducting rounds. (Dkt. 87-2 at ¶ 75;

Dkt. 98 at ¶ 75). Plaintiff called out to them and told them about the events of October 16,

2014. (Dkt. 87-2 at ¶ 76; Dkt. 98 at ¶ 76). Sheahan, Thoms, and Coveny said they would

investigate, but they never did, and Jenkins continued to take Plaintiff on medical trips.

(Dkt. 87-2 at ¶ 77; Dkt. 98 at ¶ 77). There is no record of a grievance regarding this

incident. Plaintiff claims he filed a grievance, but that it was never processed by the IGRC.

(Dkt. 99 at ¶¶ 15-17).

E. December 2014 Pain Medication and Infirmary Claims

On December 18, 2014, Plaintiff underwent a medical procedure. (Dkt. 87-2 at

¶ 78; Dkt. 98 at ¶ 78). From December 19, 2014, to December 24, 2014, Plaintiff asked

for the pain medication Percocet, but was told that the medication would be given to him

in the infirmary. (Dkt. 87-2 at ¶ 79; Dkt. 98 at ¶ 79). Defendants contend that Plaintiff

denied pain and refused admission to the infirmary, but was told that if he had unbearable

pain, he could be admitted to the infirmary for pain control. (Dkt. 87-2 at ¶ 90; Dkt. 98 at

¶ 90). Defendants contend that on December 23, 2014, Plaintiff refused antibiotics and

instead took the medication in his hand and told the nurse he would take it later. (Dkt. 87-2

at ¶ 86; Dkt. 98 at ¶ 90).

From December 24, 2014, to December 29, 2014, Plaintiff was in the infirmary to

receive the pain medication. (Dkt. 87-2 at ¶ 80; Dkt. 98 at ¶ 80). Plaintiff was on special

“feed up” procedures in the infirmary because he had thrown a container of milk from his

SHU cell at a corrections officer. (Dkt. 87-2 at ¶ 81; Dkt. 98 at ¶ 81). Plaintiff did not

receive his morning and mid-day meals on December 26, 27, and 28, 2014, when

Corrections Officer Gould (“Gould”) was working, but does not know exactly what days.

(Dkt. 87-2 at ¶¶ 82-84; Dkt. 98 at ¶¶ 82-84). Gould would walk by with Plaintiff’s meal,

and when he asked her about his food, she would continue to walk and ignore Plaintiff.

(Dkt. 87-7 at 178). Additionally, when Plaintiff did receive meals during that time period,

it was a tray of Jell-O. (Id. at 182). Plaintiff does not remember telling the nurses about

his lack of food. (Dkt. 87-2 at ¶ 85; Dkt. 98 at ¶ 85). On December 29, 2014, Defendants

contend Plaintiff was in the infirmary when an unnamed nurse told Nurse Salotti Plaintiff

was not taking his medications, and that Plaintiff was later discharged back to the SHU.

(Dkt. 87-2 at ¶ 87).

Plaintiff filed a grievance regarding the denial of pain relief medication (Dkt. 87-10

at 6 (Grievance 29856-15)), but there is no record of the grievance being appealed to the

superintendent or to CORC (id. at 5; Dkt. 87-6 at ¶ 11). Plaintiff’s claims regarding Gould

were fully grieved. (Dkt. 99 at 37 (Grievance FPT-29839-15); Dkt. 87-10 at 5).

F. January 2015 Claims

The morning of January 13, 2015, it was cold and snowy, and Jenkins, Corrections

Officer Joseph Lunduski (“Lunduski”), and Sergeant Matthew Krzeminski (“Krzeminski”)

transported Plaintiff to Upstate Hospital. (Dkt. 87-2 at ¶ 94; Dkt. 98 at ¶ 94). Plaintiff

complained that the handcuffs were too tight, but he does not remember if the belly chain

was a problem. (Dkt. 87-2 at ¶¶ 94, 96; Dkt. 98 at ¶¶ 94, 96). Plaintiff has a history of

cutting himself, including slashing his arms on July 27, 2015 and August 8, 2015, after he

heard voices telling him to kill himself. (Dkt. 87-2 at ¶¶ 108-09; Dkt. 98 at ¶¶ 108-09).

In the van, Plaintiff sat in the second row behind Plexiglas. (Dkt. 87-2 at ¶ 100;

Dkt. 98 at ¶ 100). Jenkins opened the driver-side window, and some of the cold air came

back to where Plaintiff was seated. (Dkt. 87-2 at ¶¶ 101, 103; Dkt. 98 at ¶¶ 101, 103).

Defendants contend Plaintiff did not discuss being cold during the trip, but Plaintiff denies

these allegations. (Dkt. 87-2 at ¶ 104; Dkt. 98 at ¶ 104). On the way back from the hospital,

Jenkins did not allow Plaintiff to wear his coat. (Dkt. 87-2 at ¶ 99; Dkt. 98 at ¶ 99).

There is no record of a grievance being filed regarding the events of January 13,

2015. (See Dkt. 87-10 at 5). Plaintiff contends he filed a grievance with the IGRC, but

that it was not processed. (Dkt. 99 at ¶¶ 19-20).

G. Fall 2015 Denial of Medical Care Claims

On September 19, 2015, Plaintiff was at Upstate Medical Center to have a thermal

ablation, which is a procedure where the abdomen is punctured by a needle which burns a

lesion. (Dkt. 87-2 at ¶ 112; Dkt. 98 at ¶ 112). Plaintiff was prescribed Percocet after his

medical procedures. (Dkt. 87-2 at ¶ 120; Dkt. 98 at ¶ 120). Plaintiff returned to Five Points

that day, first going to the infirmary and then the SHU. (Dkt. 87-2 at ¶ 113; Dkt. 98 at

¶ 113). Plaintiff does not remember a problem with Nurse T. Jones upon arriving back at

Five Points, nor does he remember if he refused treatment that day. (Dkt. 87-2 at

¶¶ 114-15; Dkt. 98 at ¶¶ 114-15). In his Complaint, Plaintiff alleged that on September 30,

2015, he requested his prescribed pain medication from Nurse Salotti but she refused to

give it to him. (Dkt. 1 at 29). However, Plaintiff concedes he does not remember having

contact with Nurse Salotti on September 30, 2015, although he did speak with her on many

occasions, and she told him he would not get a narcotic. (Dkt. 87-2 at ¶¶ 117-18; Dkt. 98

at ¶¶ 117-18). Plaintiff filed a grievance about Nurse Salotti refusing to give him pain

medication on September 30, 2015 (Dkt. 87-10 at 12 (Grievance FPT-30385-15)), and the

grievance was fully exhausted (Dkt. 87-2 at 5).

In early October 2015, Nurse T. Jones would walk by Plaintiff’s cell without giving

him his medication, but stated that Plaintiff repeatedly refused his medication. (Dkt. 87-2

at ¶¶ 123-24; Dkt. 98 at ¶¶ 123-24).

Plaintiff informed Superintendent Colvin on October 5, 2015, that he had been

denied medication for his liver cancer, and that he had been assaulted by Jenkins and

Schmidt (Dkt. 87-2 at ¶ 137; Dkt. 98 at ¶ 137), but Plaintiff contends that Colvin told him

that “no one likes you” and did nothing. (Dkt. 100 at 36; see Dkt. 1 at ¶¶ 110-11). There

is no record of a grievance having been filed about Plaintiff’s conversation with Colvin.

Plaintiff claims that he filed a grievance with the IGRC, but that it was never processed.

(Dkt. 99 at ¶¶ 24-26).

Also on October 5, 2015, Plaintiff complained to Lieutenant Marketos (“Marketos”)

and Casper during rounds that he had a painful, bleeding anus and wanted medical

treatment, but Marketos and Casper did not say anything. (Dkt. 87-2 at ¶¶ 130-31; Dkt.

87-10 at 17; Dkt. 98 at ¶¶ 130-31).

On October 7, 2015, Corrections Officer Labrake (“Labrake”) looked into

Plaintiff’s cell to see if Plaintiff was properly dressed and then told the nurse that Plaintiff

refused his medications. (Dkt. 87-2 at ¶ 138; Dkt. 98 at ¶ 138). On October 9, 2015,

Plaintiff asked Nurse T. Jones and another nurse for his medication, but they walked by his

cell and indicated that Plaintiff had refused treatment. (Dkt. 87-2 at ¶ 140; Dkt. 98 at

¶ 140). Plaintiff contends that Nurse T. Jones repeatedly falsely reported that Plaintiff

refused his medication. (Dkt. 100 at 33; see Dkt. 1 at ¶¶ 101-08).

Defendants contend that on October 15, 2015, Nurse Salotti and Nurse Jensen

discontinued Plaintiff’s medications due to the repeated reports that Plaintiff was refusing

his medication. (Dkt. 87-2 at ¶ 148). The medications that were discontinued included

Colace for constipation, and the nutritional supplement Boost. (Dkt. 87-2 at ¶¶ 150-51;

Dkt. 98 at ¶¶ 150-51).

Plaintiff filed grievances throughout October regarding Nurse T. Jones, McIntyre,

Casper, Marketos, and LaBrake, which were all treated as the same grievance. (Dkt. 87-10

at 13-19 (Grievance FPT-30609-15)). The grievance was fully exhausted. (Id. at 5).

On October 30, 2015, Nurse Spencer2 made a sick call round with Corrections

Officer Jarzyna (“Jarzyna”). (Dkt. 87-10 at 21). Nurse Spencer did not stop at Plaintiff’s

cell to address a sick call slip he had submitted, and ignored Plaintiff when he called for

her. (Id.). Jarzyna approached and asked why Plaintiff was yelling, and Plaintiff told

Jarzyna that his sick call slip had been ignored by Nurse Spencer. (Id.). Jarzyna left

2 Plaintiff referred to Nurse Spencer as “Spinner” in his Complaint.

without getting him treatment. (Dkt. 87-2 at ¶ 156; Dkt. 98 at ¶ 156). Plaintiff was seen

by a nurse on October 31, 2015. (Dkt. 87-2 at ¶ 157; Dkt. 98 at ¶157). Plaintiff submitted

a grievance about this incident, which was fully exhausted. (Dkt. 87-10 at 21 (Grievance

FPT-31039-15)); id. at 5).

H. October 14, 2015 Claims3

On October 14, 2015, Plaintiff was going to Upstate Medical Center with

Corrections Officers Schmidt, Alvaro, and Glasser. (Dkt. 87-2 at ¶ 141; Dkt. 98 at ¶ 141).

Plaintiff told Schmidt, who was driving, that he was going to sue him. (Dkt. 87-2 at ¶ 142;

Dkt. 98 at ¶ 142). Schmidt stopped the van, got out, opened the side door, got in the van,

and punched Plaintiff once in the face and told Plaintiff, “Sue me for that.” (Dkt. 87-2 at

¶ 143; Dkt. 98 at ¶ 143). The punch gave Plaintiff red skin, a cut in the mouth, and a broken

molar. (Dkt. 87-2 at ¶ 144; Dkt. 98 at ¶ 144). They then drove back to Five Points, and

Plaintiff went to the infirmary before returning to the SHU. (Dkt. 87-2 at ¶ 145; Dkt. 98 at

¶ 145). Plaintiff submitted a grievance about this incident with regards to Schmidt, which

was fully exhausted. (Dkt. 87-10 at 20 (Grievance FPT-30940-15)); id. at 5). However,

Alvara and Glasser were not referred to in the grievance. (Dkt. 87-10 at 20).

I. November and December 2015 Claims

On November 4, 2015, Plaintiff was scheduled to go on a medical trip to an outside

hospital. (Dkt. 87-2 at ¶ 158; Dkt. 98 at ¶ 158). Plaintiff contends he was fully restrained

in the front lobby of Five Points, and Jenkins and Schmidt threatened to shoot Plaintiff.

3 Defendants do not move for summary judgment as to the excessive use of force

claim against Schmidt related to this incident. (Dkt. 87-11 at 46).

(Dkt. 87-2 at ¶ 160; Dkt. 98 at ¶ 160). Plaintiff threatened to file a grievance against the

officers present, and Jenkins and Schmidt falsely represented that Plaintiff refused to go to

his appointment. (Dkt. 87-10 at 22). Plaintiff was then escorted back to the SHU. (Dkt.

87-2 at ¶ 160; Dkt. 98 at ¶ 160). Defendants state that Plaintiff refused to go to the hospital

“as long as security assigns individuals that put their hands on me.” (Dkt. 87-2 at ¶ 161;

Dkt. 98 at ¶ 161). Nurse Salotti attempted to discuss the risks and consequences of refusing

to go to the hospital with Plaintiff, but Plaintiff banged on the cell door and told her to “get

the fuck out” of there. (Dkt. 87-2 at ¶ 162; Dkt. 98 at ¶ 162). Plaintiff contends that from

November 4, 2015 to March 14, 2016, Nurse Salotti ignored his repeated requests to see

an outside oncologist and hematologist for treatment. (Dkt. 100 at 39; see Dkt. 99 at 43).

Plaintiff filed a grievance with regards to the actions of Jenkins and Schmidt that was fully

exhausted. (Dkt. 87-10 at 5, 22 (Grievance FPT-30940-15)). Although Defendants

contend that Plaintiff did not submit a grievance regarding the November 4, 2015 claims

Salotti (Dkt. 87-11), Plaintiff filed a grievance against Salotti regarding her alleged refusal

since November 4, 2015, to schedule Plaintiff for outside medical treatment. (Dkt. 99 at

43 (Grievance FPT-31515-16)).

Plaintiff wrote to Deputy Superintendent Lamana about his missed medical trip on

November 22, 2015, to which Lamana responded on December 8, 2015, noting that the

records indicated Plaintiff refused numerous outside trips. (Dkt. 87-2 at ¶¶ 168-69). On

December 3, 2015, Plaintiff wrote to Commissioner Annucci about the lack of cancer

treatment. (Dkt. 87-2 at ¶ 164; Dkt. 98 at ¶ 164). Dr. Koenigsmann wrote back on

December 23, 2015, stating that Plaintiff’s treatment was being monitored. (Dkt. 87-2 at

¶ 165; Dkt. 98 at ¶ 165). Plaintiff previously filed a lawsuit against Dr. Koenigsmann in

the Northern District of New York, which was dismissed. (Dkt. 87-2 at ¶ 166; Dkt. 98 at

¶ 166). There is no record of grievances regarding the responses to Plaintiff’s letters.

J. 2016 Transfer to Elmira Claims

On February 10, 2016, Hill informed Plaintiff that a transfer recommendation was

being filed (Dkt. 87-2 at ¶ 174; Dkt. 98 at ¶ 174), and on September 13, 2016, Plaintiff was

transferred to the Elmira Correctional Facility (“Elmira”) (Dkt. 87-2 at ¶ 175; Dkt. 98 at

¶ 175). Plaintiff’s cancer treatment was restarted at Elmira. (Dkt. 87-2 at ¶ 176; Dkt. 98

at ¶ 176). Plaintiff did not want to be transferred from Five Points because he thought the

transfer would delay his treatment. (Dkt. 87-2 at ¶ 177; Dkt. 98 at ¶ 177). There is no

record of a grievance about Plaintiff’s objection to the transfer.

II. Procedural Background

Plaintiff filed the instant lawsuit on April 4, 2016. (Dkt. 1). The Court issued a

screening order on June 17, 2016, allowing Plaintiff’s claims to go forward. (Dkt. 8).

Defendants filed their Answers on October 4, 2016 (Dkt. 20; Dkt. 21; Dkt. 22; Dkt. 23;

Dkt. 24; Dkt. 25; Dkt. 26; Dkt. 27; Dkt. 28; Dkt. 29; Dkt. 30; Dkt. 31; Dkt. 32; Dkt. 33;

Dkt. 34; Dkt. 35; Dkt. 36; Dkt. 37; Dkt. 38; Dkt. 39; Dkt. 40; Dkt. 41; Dkt. 42; Dkt. 43;

Dkt. 44; Dkt. 45; Dkt. 46), October 14, 2016 (Dkt. 49), and October 19, 2016 (Dkt. 51).

Discovery closed on February 28, 2017 (Dkt. 79), and Defendants filed the instant motion

for summary judgment on May 31, 2018 (Dkt. 87). Plaintiff submitted his response on

October 1, 2018. (Dkt. 98; Dkt. 99; Dkt. 100).

DISCUSSION

I. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the Court finds that no rational jury could

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

“The moving party bears the burden of showing the absence of a genuine dispute as

to any material fact. . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486

(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the

party moving for summary judgment may meet its burden by showing the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to carry the

non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103

(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the

moving party has met its burden, the opposing party “must do more than simply show that

there is some metaphysical doubt as to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,

781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d

Cir. 2011)). Specifically, the non-moving party “must come forward with specific

evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654

F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).

II. Exhaustion

Defendants argue that the following claims should be dismissed for failure to

exhaust: the October 16, 2014, deliberate indifference claims against Jenkins related to the

events at Strong; the October 16, 2014, excessive force and failure to intervene claims

against Jenkins, Schmidt, and Reynolds; the October 17, 2014, failure to investigate and

conspiracy claims against Williams, Norris, and Pierce; the October 17, 2014, deliberate

indifference claims against Trabout, Salotti, and Cheasman; the October 18, 2014,

deliberate indifference claims against Nurse T. Jones; any claims related to the November

6, 2014, incident against Jenkins and Schmidt; any claims against Sheahan, Thoms, and

Coveny related to the December 1, 2014, events; any claims against Salotti and the Jane

Doe nurse related to Plaintiff’s alleged denial of medication in December 2014; the January

13, 2015, excessive force and unlawful conditions of confinement claims against Jenkins,

Lunduski, and Krzeminski; the September 20, 2015, deliberate indifference claims against

Nurse T. Jones; the October 5, 2015, deliberate indifference claim against Colvin; the

October 14, 2015, failure to protect claims against Alvaro and Glasser; the November 4,

2015, deliberate indifference and retaliation claims against Jensen and Salotti; the

deliberate indifference claim against Dr. Koenigsmann; and the unlawful transfer claim

against Lamana and Hill.

Pursuant to 42 U.S.C. § 1997e, “[n]o action shall be brought with respect to prison

conditions under [§ 1983], or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a).

To satisfy that requirement, prisoners in New York must ordinarily follow a

three-step [DOCCS] grievance process. The first step in that process is the

filing of a grievance with the Inmate Grievance Resolution Committee.

Next, the inmate may appeal an adverse decision to the prison

superintendent. Finally, the inmate may appeal the superintendent’s decision

to [CORC]. In general, it is only upon completion of all three levels of

review that a prisoner may seek relief in federal court under § 1983.

Crenshaw, 686 F. Supp. 2d at 236 (citations omitted). “Exhaustion is mandatory—

unexhausted claims may not be pursued in federal court.” Amador v. Andrews, 655 F.3d

89, 96 (2d Cir. 2011).

Pursuant to the Second Circuit’s decision in Hemphill v. New York, 380 F.3d 680

(2d Cir. 2004), a failure to exhaust administrative remedies may be excused where: “(1)

the administrative remedies were not in fact available; [or] (2) prison officials have

forfeited, or are estopped from raising, the affirmative defense of non-exhaustion; or (3)

‘special circumstances justify the prisoner’s failure to comply with administrative

procedural requirements.’” Dabney v. Pegano, 604 F. App’x 1, 3 (2d Cir. 2015) (quoting

Hemphill, 380 F.3d at 686). However, the third prong of Hemphill, relating to “special

circumstances” was abrogated by the Supreme Court’s decision in Ross v. Blake, 136 S.

Ct. 1850 (2016). See Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016).

The inquiry which used to be under the third prong of Hemphill is now considered “entirely

within the context of whether administrative remedies were actually available to the

aggrieved inmate.” Id.

With respect to the burden of proof, “failure to exhaust is an affirmative defense”

which “must be pleaded and proved by a defendant.” Lopez v. Cipolini, 136 F. Supp. 3d

570, 580 (S.D.N.Y. 2015) (citations and quotations omitted). However, once a defendant

demonstrates that the plaintiff has not exhausted his administrative remedies, “the burden

of proof shifts to the plaintiff to show his case falls under at least one of the exceptions” to

the exhaustion requirement. Perry v. Rupert, No. 9:10-CV-1033 LEK/TWD, 2013 WL

6816795, at *4 (N.D.N.Y. Dec. 20, 2013); see also Hubbs v. Suffolk Cty. Sheriffs Dep’t,

788 F.3d 54, 59 (2d Cir. 2015) (once defendants meet their initial burden of showing failure

to exhaust, the burden shifts to the plaintiff “to demonstrate that other facts . . . rendered a

nominally available procedure unavailable as a matter of fact”).

As a preliminary matter, Plaintiff concedes that he failed to file grievances against

Alvaro, Glasser, Koenigsmann, Lamana, Hill, and Jensen, and that those claims should be

dismissed. (Dkt. 100 at 37, 40). Accordingly, the Court grants Defendants’ motion as to

the claims against Alvaro, Glasser, Koenigsmann, Lamana, Hill, and Jensen.

As for the remaining claims listed above, with the exception of the November 4,

2015 retaliation claim against Salotti,4 Defendants have met their initial burden of

4 Defendants contend that Plaintiff did not submit a grievance regarding the

November 4, 2015 claims against Jensen and Salotti. (Dkt. 87-11). While Plaintiff

concedes he did not grieve the claim against Jensen (Dkt. 100 at 39), he has submitted a

grievance he filed against Salotti regarding her alleged refusal since November 4, 2015, to

schedule Plaintiff for outside medical treatment. (Dkt. 99 at 43 (Grievance FPT-31515-

16)).

demonstrating Plaintiff failed to exhaust these claims. Defendants submitted records of all

the grievances filed by Plaintiff with the IGRC in 2014 and 2015 and the appeals history

of each grievance. (Dkt. 87-9 at 32; Dkt. 87-10 at 5). According to the lists, while confined

at Five Points, Plaintiff successfully filed and appealed 25 grievances during 2014 and

2015. (Dkt. 87-9 at 32; Dkt. 87-10 at 5). At least five of those grievances are relevant to

Plaintiff’s claims in the instant matter (FPT-29839-15, FPT-30385-15, FPT-30609-15,

FPT-30940-15, FPT-31039-15). (Dkt. 87-9 at 32; Dkt. 87-10 at 5).

Plaintiff maintains that he filed grievances and letters of appeal for the claims that

Defendants move to dismiss for failure to exhaust, which were “confiscated” by prison

guards at Elmira and Attica. (Dkt. 99 at ¶ 5). However, Plaintiff does not submit evidence

nor allege with any specificity as to when or how these documents were confiscated at

Elmira or Attica, or who he originally handed the grievances or letters to at Five Points for

submission to the IGP.5 The Court also notes that while in DOCCS custody, as of

September 26, 2016, Plaintiff successfully used the IGP to its fullest extent on 677 other

occasions. (Dkt. 87-9 at 3-30). Plaintiff’s unsupported and unspecified statements are

insufficient to create a genuine issue of material fact. See Scott v. Kastner-Smith, 290 F.

Supp. 3d 545, 555 (W.D.N.Y. 2018) (“[C]ourts have consistently held . . . that an inmate’s

general claim that his grievance was lost or destroyed does not excuse the exhaustion

requirement.” (quotation omitted)); Mims v. Yehl, No. 13-CV-6405-FPG, 2014 WL

5 Plaintiff has submitted letters with requests for status updates regarding grievances

he submitted in early 2014 and May 2016, all of which are unrelated to the instant matter.

(Dkt. 99 at 9-16).

4715883, at *4 (W.D.N.Y. Sept. 22, 2014) (inmate’s “unsupported statement” that he

submitted a grievance is “insufficient at the summary judgment stage”); Veloz v. New York,

339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004) (“[An] inmate’s unsupported claims that his

grievances were lost at the Grievance Committee Office or destroyed by officers . . . fails

to excuse [the] inmate from fully grieving remedies[.]” (citation omitted)).

Moreover, as previously discussed, Plaintiff successfully filed and exhausted 25

grievances throughout 2014 and 2015. (Id. at 5). As such, the Court finds the record is

consistent with finding the grievance process was available to Plaintiff. See Davis v. Grant,

No. 15-CV-5359 (KMK), 2019 WL 498277, at *9 (S.D.N.Y. Feb. 8, 2019) (plaintiff’s

unsupported statements failed to create issue of fact, in part, where plaintiff successfully

used IGP on 39 previous occasions); Rodriguez v. Cross, No. 15-CV-1079 (GTS/CFH),

2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (grievance process not unavailable

where evidence demonstrated that four grievances were filed within a year of purportedly

lost grievance), report and recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June

27, 2017); McKinney v. Prack, 170 F. Supp. 3d 510, 517 (W.D.N.Y. 2016) (finding

plaintiff’s allegations that IGP refused to process grievances did not raise issue of fact

where record showed that plaintiff “appealed and exhausted approximately 20 grievances

during his 29 years of incarceration”).

The Court acknowledges that “[t]his may seem like a harsh result, but it is compelled

by the plain language of the [Prison Litigation Reform Act (‘PLRA’)].” Keitt v. NYS Dep’t

of Corr. & Cmty. Supervision, No. 11-CV-855-LJV-MJR, 2017 WL 9471826, at *6

(W.D.N.Y. Jan. 4, 2017). Binding Supreme Court precedent makes clear that the PLRA,

which governs in the instant matter, establishes a mandatory exhaustion regime that

forecloses judicial discretion, see Ross, 136 S. Ct. at 1857; Woodford v. Ngo, 548 U.S. 81,

95 (2006) (“A prisoner who does not want to participate in the prison grievance system

will have little incentive to comply with the system’s procedural rules unless

noncompliance carries a sanction[.]”), and here, as discussed above, there is no statutory

exception to this mandatory exhaustion requirement that Plaintiff’s claims fall under.

Accordingly, the Court grants summary judgment as to Plaintiff’s unexhausted claims as

listed above.

III. Deliberate Indifference Claim—Gould

Defendants contends that Plaintiff’s Eighth Amendment claim against Gould should

be dismissed.6 The Court denies Defendants’ motion as to this claim for the reasons below.

The Eighth Amendment requires prison officials to take reasonable measures to

guarantee the safety of inmates in their custody. Farmer v. Brennan, 511 U.S. 825, 833

(1994). The assessment of whether the measures taken are reasonable turns on an analysis

of two factors. First, the inmate must show that “objectively, the deprivation the inmate

suffered was sufficiently serious that he was denied the minimal civilized measure of life’s

necessities.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (quotation omitted).

Second, the inmate must demonstrate that “the defendant official acted with a sufficiently

culpable state of mind, such as deliberate indifference to inmate health or safety.” Id.

6 Defendants make no arguments with regards to the retaliation claim against Gould.

(See Dkt. 8 at 6 (screening order allowing retaliation claim against Gould to proceed to

service)). Accordingly, Defendants’ motion is denied as to that claim.

(quotation and alteration omitted). Deliberate indifference must be measured subjectively,

that is:

[A] prison official cannot be found liable under the Eighth Amendment . . .

unless the official knows of and disregards an excessive risk to [the]

inmate[’s] health or safety; the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.

Farmer, 511 U.S. at 837.

Viewing the evidence in the light most favorable to Plaintiff, there is a genuine issue

of material fact as to whether Plaintiff suffered a sufficiently serious deprivation. “‘[A]

substantial deprivation of food’ can cause serious physical harm sufficient to find cruel and

unusual punishment in violation of the Eighth Amendment.” Jackson v. Marks, 722 F.

App’x 106, 107 (2d Cir. 2018) (quoting Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.

1983)). The record viewed in the light most favorable to Plaintiff shows that he was denied

at least two out of three meals for three of the days that he was in the infirmary due to

severe pain from his cancer treatment, and that the meals he did receive consisted of a tray

of Jell-O. (Dkt. 87-7 at 178, 182). “When a prison guard deprives a prisoner of two of the

regularly three meals served each day, the objective prong of the Eighth Amendment may

be met if the defendants do not satisfy their burden of showing that the one meal served is

nutritionally adequate.” Beckford v. Portuondo, 151 F. Supp. 2d 204, 213 (N.D.N.Y.

2001). Defendants have presented no evidence that a tray of Jell-O is nutritionally

adequate. The Court finds that a reasonable trier of fact could determine that depriving a

cancer patient of two out of three meals for three days and otherwise only giving him Jell-O

presented an immediate danger to Plaintiff’s health and well-being. See Williams v.

Coughlin, 875 F. Supp. 1004, 1011-13 (W.D.N.Y. 1995) (denying summary judgment

where the plaintiff was deprived of five consecutive meals over a two-day period).

The cases cited by Defendants are not dispositive. Defendants cite two cases where

the courts addressed the deprivation of one to three meals total, see Butler v. Hogue, No.

9:08-CV-264 GLS DRH, 2010 WL 4025886, at *3 (N.D.N.Y. Oct. 13, 2010) (finding the

“[d]eprivation of only two meals over a two-day period” did not rise to level of Eighth

Amendment violation), aff’d, 434 F. App’x 36 (2d Cir. 2011); Benjamin v. Kooi, No. 9:07-

CV-0506, 2010 WL 985844, at *11 (N.D.N.Y. Feb. 25, 2010) (dismissing claim where the

plaintiff claimed “that he was essentially denied anywhere from one to three meals”),

report and recommendation adopted, No. 9:07-CV-0506LEK/DRH, 2010 WL 985823

(N.D.N.Y. Mar. 17, 2010), whereas here the record viewed in the light most favorable to

Plaintiff shows he was deprived of two out of three meals over a three day period, see

Abascal v. Fleckenstein, No. 06-CV-349S, 2012 WL 638977, at *3 (W.D.N.Y. Feb. 27,

2012) (denying summary judgment where the plaintiff claimed he was denied seven meals

in a four day period). Defendants also cite a case where the court found denying an inmate

food for two or three days was not sufficient to state an Eighth Amendment claim. See

Barclay v. New York, 477 F. Supp. 2d 546, 545-55 (N.D.N.Y. 2007). Although it is true

that like the Barclay plaintiff, Plaintiff’s medical records do not mention his pain, the

record before the Court supports that Plaintiff was in pain—the reason Plaintiff was in the

infirmary was to receive pain medication. (Dkt. 87-2 at ¶ 90; Dkt. 98 at ¶ 90).

Additionally, the Barclay court further noted there was “no evidence that the denial of food

was done maliciously to cause pain,” id. at 555, whereas here the record viewed in the light

most favorable to Plaintiff shows that Gould purposely ignored Plaintiff when he asked for

his meals. (Dkt. 87-7 at 178). Accordingly, Defendants’ motion for summary judgment is

denied as to the claims against Gould.

IV. September 30, 2015 Denial of Medical Care Claim Against Salotti

Plaintiff claims that Salotti’s refusal to give Plaintiff the narcotic Percocet was

deliberate indifference to a serious medical need. A reasonable trier of fact could not find

that Salotti’s conduct amounted to a violation of Plaintiff’s constitutional rights for the

reasons that follow.

“The Eighth Amendment, which applies to the states under the Due Process Clause

of the Fourteenth Amendment, guarantees freedom from cruel and unusual punishment.”

Jones v. Westchester Cty. Dep’t of Corrs. Med. Dep’t, 557 F. Supp. 2d 408, 413 (S.D.N.Y.

2008). An Eighth Amendment claim arising out of inadequate medical care requires a

plaintiff-inmate to demonstrate that a defendant was deliberately indifferent to a serious

medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Farmer v. Brennan,

511 U.S. 825, 834 (1994). A claim for deliberate indifference has both an objective and a

subjective component. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

Objectively, a medical need is serious for constitutional purposes if it presents “‘a

condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain.’” Chance v.

Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 37 F.3d 63,

66 (2d Cir. 1994)). “[I]f the prisoner is receiving on-going treatment and the offending

conduct is an unreasonable delay . . . in that treatment, the seriousness inquiry focuses on

the challenged delay or interruption in treatment rather than the prisoner’s underlying

medical condition alone.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006)

(quotation and original alteration omitted). It is appropriate “to consider the absence of

concrete medical injury as one of the relevant factors in determining whether the asserted

deprivation of medical care was sufficiently serious to establish a claim under the Eighth

Amendment.” Smith v. Carpenter, 316 F.3d 178, 189 (2d Cir. 2003).

“Subjectively, the official charged with deliberate indifference must have acted with

the requisite state of mind, the ‘equivalent of criminal recklessness.’” Lapierre v. County

of Nassau, 459 F. App’x 28, 29 (2d Cir. 2012) (quoting Hathaway v. Coughlin, 99 F.3d

550, 553 (2d Cir. 1996)). Specifically, a plaintiff must prove that the prison official knew

of a serious medical condition and nonetheless disregarded the plaintiff’s medical needs.

Farmer, 511 U.S. at 837 (holding that a prison official does not act in a deliberately

indifferent manner towards an inmate unless he “knows of and disregards an excessive risk

to inmate health or safety”); see also Beaman v. Unger, 838 F. Supp. 2d 108, 110

(W.D.N.Y. 2011) (“To establish deliberate indifference, . . . [a] plaintiff must prove that

the defendants had a culpable state of mind and intended wantonly to inflict pain.”). More

than medical malpractice is required to establish a constitutional violation. See Hill v.

Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (“Medical malpractice does not rise to the level

of a constitutional violation unless the malpractice involves culpable recklessness[.]”).

Similarly, mere negligence is not actionable. “A [prisoner’s] complaint that a physician

has been negligent in diagnosing or treating a medical condition does not state a valid claim

of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106.

The record does not support that Plaintiff’s medical need was serious. On

September 19, 2015, Plaintiff had undergone a thermal ablation procedure at a hospital,

and when he returned to Five Points he stayed in the infirmary overnight, although his

medical records indicate that he did not want to stay overnight. (Dkt. 89-3 at 25). Plaintiff

returned to the SHU on September 20, 2015. (Id.). There is no evidence in the record that

Plaintiff complained of pain between the time of his return to the SHU on September 20,

2015, and September 30, 2015. Additionally, Plaintiff’s medical records from September

30, 2015, indicate that his pain was “intermittent” and “changes with positioning.” (Id.).

“It is well-established that such minor injuries do not normally rise to the level of

seriousness required to support a viable claim [of] medical indifference under the Eighth

Amendment.” Cintron v. Reome, No. 914CV0116TJMDEP, 2016 WL 4063765, at *6

(N.D.N.Y. June 29, 2016) (collecting cases), report and recommendation adopted, No.

914CV116TJMDEP, 2016 WL 4098581 (N.D.N.Y. July 28, 2016); see Salaam v. Adams,

No. 9:03CV0517(LEK/GHL), 2006 WL 2827687, at *10 (N.D.N.Y. Sept. 29, 2006)

(finding no serious medical need where the medical records indicated that the plaintiff

exhibited no signs of injury “during the days and weeks following the alleged assault,” and

where the records indicated that the complaints were “sporadic in nature and not of such

severity as to be ‘urgent’”).

Additionally, the record before the Court does not show that Salotti acted with

deliberate indifference. Plaintiff does not contend that Salotti refused to treat him; instead,

Plaintiff claims that on September 30, 2015, Salotti refused to give him pain medication

“prescribed by his outside treating oncologist” (Dkt. 1 at ¶ 102), which Plaintiff later stated

was the narcotic Percocet (Dkt. 87-7 at 238). The record does not demonstrate that Five

Points was in receipt of a prescription from any outside treating physician. (See Dkt. 89-3

at 25 (medical record from September 30, 2015, stating Plaintiff requested two

“medications ordered by specialist,” but noting there were “none in the records”)). In any

event, “[i]t is well-established that mere disagreement over the proper treatment does not

create a constitutional claim. So long as the treatment given is adequate, the fact that a

prisoner might prefer a different treatment does not give rise to an Eighth Amendment

violation.” Chance, 143 F.3d at 703. A prisoner “is not entitled under the Eighth

Amendment to the best treatment available; he is merely entitled to ‘reasonable care.’”

Barnes v. Ross, 926 F. Supp. 2d 499, 506 (S.D.N.Y. 2013) (citing Salahuddin, 467 F.3d at

279).

The record before the Court shows that Nurse Salotti advised Plaintiff that no

medication would prevent the type of discomfort described by Plaintiff at that time, i.e.,

“occasional jolts” of pain. (Dkt. 87-4 at ¶ 13). There is no evidence in the record

contradicting this assertion, or demonstrating that such a statement would be more than

malpractice or negligence. See Estelle, 429 U.S. at 106 (“A [prisoner’s] complaint that a

physician has been negligent in diagnosing or treating a medical condition does not state a

valid claim of medical mistreatment under the Eighth Amendment.”); Hill v. Curcione, 657

F.3d 116, 123 (2d Cir. 2011) (“Medical malpractice does not rise to the level of a

constitutional violation unless the malpractice involves culpable recklessness[.]”).

Additionally, the record supports that Five Points had a policy of only giving narcotics to

prisoners admitted to the infirmary. (Dkt. 87-2 at ¶ 90; Dkt. 98 at ¶ 90); see Trammel v.

Keane, 338 F.3d 155, 163 (2d Cir. 2003) (discussing that courts should accord prison

administrators “wide-ranging deference in the adoption and execution of policies and

practices that in their judgment are needed to preserve internal order and discipline and to

maintain institutional security” (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979))).

Accordingly, a reasonable trier of fact looking at the record before the Court could not find

that Nurse Salotti acted with deliberate indifference on September 30, 2015, by not giving

Plaintiff a narcotic, and Defendants’ motion is granted with respect to that claim.

V. October 5, 2015 Claims

Defendants contend the Court should grant summary judgment as to Plaintiff’s

failure to protect claims against Casper and Marketos, regarding his rectal bleeding on

October 5, 2015, as well as the denial of medical care claims against Nurse T. Jones. The

Court disagrees for the following reasons.

With respect to claims for failure to protect, the Second Circuit has explained as

follows:

The Eighth Amendment requires prison officials to take reasonable measures

to guarantee the safety of inmates in their custody. Moreover, under 42

U.S.C. § 1983, prison officials are liable for harm incurred by an inmate if

the officials acted with “deliberate indifference” to the safety of the inmate.

However, to state a cognizable section 1983 claim, the prisoner must allege

actions or omissions sufficient to demonstrate deliberate indifference; mere

negligence will not suffice.

The test for deliberate indifference is twofold. First, the plaintiff must

demonstrate that he is incarcerated under conditions posing a substantial risk

of serious harm. Second, the plaintiff must demonstrate that the defendant

prison officials possessed sufficient culpable intent. The second prong of the

deliberate indifference test, culpable intent, in turn, involves a two-tier

inquiry. Specifically, a prison official has sufficient culpable intent if he has

knowledge that an inmate faces a substantial risk of serious harm and he

disregards that risk by failing to take reasonable measures to abate the harm.

Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (internal citations omitted)

(citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)).

The record before the Court viewed in the light most favorable to Plaintiff

demonstrates that Plaintiff complained to them on October 5, 2015, that he had a painful,

bleeding anus and wanted medical treatment, but that Marketos and Casper did not do or

say anything about Plaintiff’s complaints. (Dkt. 87-2 at ¶¶ 130-31; Dkt. 87-10 at 17).

Further, the record viewed in the light most favorable to Plaintiff shows that when he

informed Nurse T. Jones about his rectal bleeding, she merely told him to put in for a sick

call and did not treat him. (Dkt 87-10 at 17). Defendants argue that the bleeding from

Plaintiff’s anus “was a reoccurring problem,” and that Plaintiff “was regularly seen by

medical care providers” at that time. (Dkt. 87-11 at 38). However, nothing in the medical

records indicates that Plaintiff received treatment in October 2015 for his rectal bleeding.

(See Dkt. 89-3 at 26-27; Dkt. 87-10 at 26). The Court finds that a reasonable trier of fact

could find the alleged actions by Marketos and Casper amounted to a failure to protect and

that the alleged actions by Nurse T. Jones constituted deliberate indifference to a serious

medical need, and the Court denies Defendants’ motion as to these claims.

VI. October 30, 2015 Claims Against Jarzyna and Spencer

The Court finds that the record does not support a deliberate indifference claim

against Jarzyna and Nurse Spencer. Plaintiff claims that on October 30, 2015, he was

ignored by Jarzyna and Nurse Spencer even though he submitted a sick call slip and made

oral complaints to them, and as a result he “continued to suffer from severe pain in his liver

due to the cancer therein.” (Dkt. 1 at ¶¶ 118-19). However, nothing in the record indicates

that Plaintiff’s treatment suffered an unreasonable delay. Plaintiff was seen by a nurse the

next day, and the medical records indicate that a copy of his sick call was made and

forwarded to his provider. (Dkt. 89-3 at 28). Additionally, when Plaintiff requested that

the nurse give him the pain medication prescribed by his outside oncologist, she informed

him that Nurse Salotti had already made a recommendation for the pain medication. (Id.).

The record does not show that Plaintiff’s treatment would have been any different if Nurse

Spencer had attended to him the night before. See Bilal v. White, 494 F. App’x 143, 146

(2d Cir. 2012) (holding summary judgment was appropriate where the record demonstrated

no “serious consequence at all from the delay in treatment”); Carpenter, 316 F.3d at 187

(“[T]he actual medical consequences that flow from the alleged denial of care will be

highly relevant to the question of whether the denial of treatment subjected the prisoner to

a significant risk of serious harm.”). Accordingly, a reasonable trier of fact could not find

on the record before the Court that any delay in Plaintiff’s treatment led to other

consequential injurious effects, and the Court grants Defendants’ motion as to the claims

against Jarzyna and Spencer.

VII. October 2015 Denial of Medication Claims

The Court finds there are genuine issues of material fact with respect to Plaintiff’s

October 2015 denial of medical care claims against Nurse T. Jones, McIntyre, and

LaBrake.

Defendants contend that Plaintiff repeatedly refused to take his medication for a

period of approximately two weeks in October 2015, and as a result administration of his

medications—which included Corgard for high blood pressure, Colace for constipation,

and a multivitamin—was discontinued. (Dkt. 87-11 at 37). Plaintiff, on the other hand,

argues that he did not refuse to take his medications, but instead that Nurse T. Jones,

McIntyre, and LaBrake, as well as Nurse Baker who has not yet been served, would not

give him his medication throughout October, and then falsely reported that he was refusing

to take it. (Dkt. 87-2 at ¶¶ 123, 138, 140; Dkt. 87-10 at 16). Although Plaintiff admits that

he does not “have a problem with constipation” (Dkt. 87-7 at 288), the record before the

Court viewed in the light most favorable to Plaintiff shows that discontinuing the high

blood pressure medication contributed to his rectal bleeding (id. at 287-88). The Court

finds that a reasonable trier of fact viewing the record in the light most favorable to Plaintiff

could determine that repeatedly failing to administer medication to Plaintiff and then

falsely reporting that Plaintiff was refusing to take that medication, resulting in the

discontinuance of Plaintiff receiving his high blood pressure medication and the

continuance of his rectal bleeding, constitutes deliberate indifference to a serious medical

need. Therefore, Defendants’ motion is denied as to these claims.

VIII. November 4, 2015 Claims

Defendants argue the retaliation and denial of medical care claims against Jenkins,

Schmidt, and Williams for the events of November 4, 2015 should be dismissed. The Court

finds there are genuine issues of material fact regarding these claims.

“Courts properly approach prisoner retaliation claims ‘with skepticism and

particular care,’ because ‘virtually any adverse action taken by a prison official—even

those otherwise not rising to the level of a constitutional violation—can be characterized

as a constitutionally proscribed retaliatory act.’” Davis v. Goord, 320 F.3d 346, 352 (2d

Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other

grounds, Swierkeiewicz v. Sorema N.A., 534 U.S. 506 (2002)). A plaintiff asserting First

Amendment retaliation claims must establish “(1) that the speech or conduct at issue was

protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there

was a causal connection between the protected speech and the adverse action.” Davis, 320

F.3d at 352 (quoting Dawes, 239 F.3d at 492). “The filing of formal prisoner grievances

is protected conduct under the First Amendment.” Shariff v. Poole, 689 F. Supp. 2d 470,

478 (W.D.N.Y. 2010) (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).

“Adverse action,” defined objectively, is “retaliatory conduct ‘that would deter a

similarly situated individual of ordinary firmness from exercising . . . constitutional

rights.’” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (quoting Davis, 320 F.3d at

353). “In other words, in the context of prisoner retaliation suits, a prisoner need not

demonstrate ‘actual chill.’ The issue is whether defendants engaged in retaliatory conduct

that would ‘deter a similarly situated individual of ordinary firmness from exercising his

constitutional rights.’” Lashley v. Wakefield, 483 F. Supp. 2d 297, 300 (W.D.N.Y. 2007)

(quoting Gill, 389 F.3d at 381). “This objective inquiry is not static across contexts, but

rather must be tailored to the different circumstances in which retaliation claims arise.”

Dawes, 239 F.3d at 493 (internal quotation omitted). “Prisoners may be required to tolerate

more . . . than average citizens, before a [retaliatory] action taken against them is considered

adverse.” Davis, 320 F.3d at 353.

In evaluating whether a plaintiff has established the necessary causal connection of

a retaliation claim, “a court may infer an improper or retaliatory motive in the adverse

action from: (1) the temporal proximity of the filing to the grievance and the disciplinary

action; (2) the inmate’s prior good disciplinary record; (3) vindication at a hearing on the

matter; and (4) statements by the defendant regarding his motive for disciplining the

plaintiff.” Shariff, 689 F. Supp. 2d at 479. “The Second Circuit has held that temporal

proximity between an inmate’s grievance and disciplinary action may serve as

circumstantial evidence of retaliation[.]” Candelaria v. Higley, No. 04-CV-0277(MAT),

2013 WL 104910, at *9 (W.D.N.Y. Jan. 8, 2013) (citing Colon, 58 F.3d at 872-73).

Accordingly, “[a] plaintiff can establish a causal connection that suggests retaliation by

showing that protected activity was close in time to the adverse action.” Espinal v. Goord,

558 F.3d 119, 129 (2d Cir. 2009).

Defendants contend that on the morning of November 4, 2015, Plaintiff refused to

go on a medical trip to get a C.T. scan of his liver and was returned to the SHU. (Dkt. 87-2

at ¶ 161). However, Plaintiff takes the position that he did not refuse to go, but that Jenkins

and Schmidt verbally threatened Plaintiff in front of Williams, and when Plaintiff stated he

would file grievances against them, they cancelled the trip and falsely reported that he

refused to go. (Dkt. 87-10 at 22). As a result, Plaintiff’s cancer treatment was delayed.

(Dkt. 87-7 at 302). The Court finds that a reasonable trier of fact viewing the record in the

light most favorable to Plaintiff could find that prison guards lying to cancel Plaintiff’s

medical appointment, which resulted in delayed cancer treatment, amounts to deliberate

indifference to a serious medical need.

Additionally, Defendants are not entitled to summary judgment with regards to the

retaliation claim against Schmidt, Jenkins, and Williams. The record viewed in the light

most favorable to Plaintiff shows that Plaintiff threatened to file a grievance against

Jenkins, Schmidt, and Williams, and that immediately afterwards they cancelled Plaintiff’s

medical appointment scheduled for that day. A reasonable trier of fact could find this

conduct amounts to retaliation.

Defendants argue that “verbal harassment does not rise to the level of a

constitutional violation.” (Dkt. 87-11 at 42). While Defendants make an accurate

statement of the law, see Davis, 320 F.3d at 353 (“‘[S]arcastic’ comments, without more,

do not constitute an adverse action.”), the issue of material fact in dispute is not whether

Jenkins and Schmidt verbally harassed Plaintiff in front of Williams, but whether Plaintiff’s

medical appointment for his cancer treatment was cancelled by Jenkins, Schmidt, and

Williams because Plaintiff threatened to filed grievances against them. Accordingly, the

Court denies Defendants’ summary judgment motion as to the November 4, 2015 claims

against Jenkins, Schmidt, and Williams.

IX. Remaining Claims Against Salotti

Defendants contend summary judgment should be granted as to the remaining

retaliation and denial of medical care claims against Salotti for her alleged refusal to

schedule Plaintiff’s outside medical treatment for his liver cancer after November 4, 2015.

The Court agrees for the following reasons.

Defendants point to multiple portions of the record to support their position that the

reason Plaintiff did not receive treatment for his liver cancer after November 4, 2015, was

because of his refusal to attend his scheduled medical appointments. For example, a refusal

of medical examination form from January 16, 2016 states Plaintiff “refused medical

services after throwing milk on an officer.” (Dkt. 89-2 at 40). Additionally, in Salotti’s

declaration made under penalty of perjury, she states that Plaintiff’s treatment was

interrupted because he “had several incidents of self-harm which resulted in him being in

Mental Health Unit[] observation cells or [the] infirmary one on one watch” (Dkt. 87-4 at

¶ 25), and that Plaintiff’s treatment resumed after March 14, 2016, after Salotti discussed

with him “the need to avoid refusals of medication and treatment” (id. at ¶ 26). The only

evidence of record in support of Plaintiff’s position are statements that Salotti has “refused

since November 4, 2015 . . . to schedule me for outside medical treatment for my liver

cancer” and that “Salotti continues to deny me urgently needed medical treatment for my

cancer.” (Dkt. 99 at 43). The Court finds that these conclusory allegations without the

support of any other evidence of record are insufficient to withstand summary judgment.

Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (“[U]nsupported allegations

do not create a material issue of fact.”); Smith v. County of Nassau, No. 12-CV-4344 SJF

GRB, 2014 WL 2862849, at *6 (E.D.N.Y. June 18, 2014) (granting summary judgment

where the plaintiffs did not dispute the justifications offered by the defendants “except to

offer a conclusory, unsupported statement”). Accordingly, the Court grants Defendants’

motion for summary judgment as to the remaining claims against Salotti.

CONCLUSION

For the reasons stated above, the Court grants in part and denies in part Defendants’

motion for partial summary judgment. (Dkt. 87). The only claims remaining in the instant

lawsuit related to the Defendants presently before the Court are the December 2014

deliberate indifference/conditions of confinement and retaliation claims against Gould; the

October 5, 2015 failure to protect claims against Casper and Marketos and deliberate

indifference claim against Nurse T. Jones; the October 2015 deliberate indifference for

denial of medication claims against Nurse T. Jones, McIntyre, and LaBrake; the October

14, 2015 excessive use of force claim against Schmidt; and the November 4, 2015

deliberate indifference and retaliation claims against Jenkins, Schmidt, and Williams. The

Clerk of Court is directed to terminate the following Defendants as parties to this action:

Salotti, Reynolds, Alvaro, Glasser, Norris, Pierce, Trabout, Cheasman, Sheahan, Thoms,

Coveny, Jensen, Ludenski, Krzeminski, Colvin, Jarzyna, LaMana, Hill, Spencer,7 and

Koenigsmann.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

United States District Judge

Dated: April 8, 2020

Rochester, New York

7 As previously noted, Plaintiff referred to Spencer as “Spinner” in the Complaint,

and she is so listed in the caption.